Citation Nr: 0100424
Decision Date: 01/08/01 Archive Date: 01/17/01
DOCKET NO. 94-25 560 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Phoenix, Arizona
THE ISSUE
Entitlement to a total disability rating for compensation
based on individual unemployability due to service-connected
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran had active service from September 1960 to March
1962.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a March 1994 rating decision by the RO in St.
Petersburg, Florida, which denied entitlement to a total
disability rating for compensation based on individual
unemployability. The veteran appealed this issue to the
Board. In an August 1994 rating decision, the RO denied
service connection for a cervical spine disability and an
increased rating for service-connected neurological disorder.
An increased rating for right clavicle disability was
granted. The veteran appealed all issues to the Board.
In a March 1998 decision, the Board denied an increased
rating for service-connected neurological disorder involving
the right upper extremity, and granted an increased rating
for right clavicle disability; these issues are no longer
before the Board. Also in March 1998, the Board remanded the
service connection and total rating issues for further
development and adjudication.
In May 2000, the St. Petersburg RO granted the veteran
service connection was granted for a cervical spine
disability, thus resolving that issue. The denial of the
claim for a disability rating for compensation based on
individual unemployability was confirmed and continued.
Hence, that issue, the only one remaining on appeal, has been
returned to the Board for further consideration. In June
2000, the veteran requested transfer of his claims file from
the St. Petersburg RO to the RO in Phoenix, Arizona.
In correspondence received in July 2000, the veteran raised
the issues of service connection for post-traumatic stress
disorder and for dental disability. As noted below, these
issues are referred to the RO for adjudication.
REMAND
The Board notes that although the veteran was examined on two
occasions in June 1999, neither examiner offered an opinion
as to the veteran's ability to be employed. Moreover, as
noted in the introductory portion of this remand decision,
the veteran has raised two additional service connection
issues. The outcome of his claims may have some bearing on
his claim for a total disability rating for compensation
based on individual unemployability. See Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991). Thus, while the
Board does not currently have jurisdiction over the service
connection issues, those issues must be addressed prior to
readjudication of the issue of a total disability rating for
compensation based on individual unemployability.
Accordingly, the Board finds that the RO should readjudicate
the additional service connection issues, entitlement to
service connection for PTSD and for dental disability. With
regard to these service connection issues, the Board notes
that VA is under new directives regarding the development of
such claims. On November 9, 2000, the President signed into
law the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000). Among other things, this law
defines VA's duty to assist a claimant in obtaining evidence
to necessary to substantiate the claim, and eliminates from
38 U.S.C.A. § 5107(a) the necessity of submitting a well-
grounded claim to trigger VA's duty to assist (thus
superceding the decision in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded). These changes are applicable to all
claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107); see also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
In view of the changes in the law brought about by the
Veterans Claims Assistance Act of 2000, VA must ensure
compliance with the notice and duty to assist provisions
contained in the new law. Id. This should include
consideration of whether any additional notification or
development action is required under the Act. Such
development action may include requesting information as
described in 38 U.S.C.A. § 5106, as well as the
accomplishment of a medical examination (or, obtaining a
medical opinion) when such evidence may substantiate
entitlement to the benefits sought. A claim may be decided
without providing such assistance only when no reasonable
possibility exists that such assistance will aid in the
establishment of entitlement, or the record includes medical
evidence sufficient to adjudicate the claim. Id.
Under the circumstances of this case, and in light of the
foregoing, another remand is warranted, even though it will,
regrettably, further delay the Board's decision on the total
rating issue.
The RO should obtain and associate with the record all
outstanding records of medical evaluation/treatment for his
alleged PTSD and dental disabilities, particularly those from
VA or other government entities. The Board emphasizes that
records generated by VA facilities that may have an impact on
the adjudication of a claim are considered constructively in
the possession of VA adjudicators during the consideration of
a claim, regardless of whether those records are physically
on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998);
Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Here, the
record reflects that the veteran has received treatment from
the VA medical facility in Fort Myers, Florida. Such records
must be obtained, along with records from any other source or
facility identified by the veteran; the veteran is also
invited to submit pertinent medical or lay evidence in his
possession. The RO should also follow all appropriate
development procedures for PTSD claims. Thereafter, the
veteran should be afforded VA examinations to determine if he
has the alleged disabilities, and, if so, whether any such
disorder(s) is/are related to service. In addition each
examiner should render an opinion as to the extent to which
the veteran's service-connected disability(ies) interfere
with employment, or whether they preclude employment
altogether.
After the aforementioned development is completed, and, if
not rendered moot, the issue of entitlement to a total
disability rating for compensation based on individual
unemployability should be readjudicated, on the merits.
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instructions completely.
Accordingly, these matters are hereby REMANDED to the RO for
the following action:
1. The RO should obtain and associate
with the claims file all outstanding
records of treatment pertaining to the
veteran. This should specifically
include any outstanding records from the
Fort Myers VA facility, as well as from
other source or facility identified by
the veteran. If any requested records
are not available, or the search for any
such records otherwise yields negative
results, that fact should clearly be
documented in the claims file, and the
veteran and his representative should be
duly notified. The veteran should be
informed that he may submit additional
medical records, also.
2. The RO should properly develop the
veteran's service connection claim for
PTSD, to include a determination as to
whether the veteran engaged in combat, as
well as stressor development and
verification, as appropriate..
3 After associating with the claims file
all records received pursuant to the
above-requested development, the veteran
should be afforded VA psychiatric,
dental, and other appropriate
examination(s), to determine the current
nature, extent, and manifestations of the
veteran's alleged psychiatric and dental
disabilities as well his current service-
connected disabilities. The entire
claims folder, to include a complete copy
of this REMAND, must be provided to and
be reviewed by each physician designated
to examine the veteran. All necessary In
addition, all necessary testing should be
completed to include x-rays and
laboratory tests.
With regard to the psychiatric
examination, the physician should provide
a multi-axial diagnosis, reporting all
psychiatric diagnoses found to be
present. Further, for each psychiatric
disorder diagnosed, the examiner should
indicate whether it is at least as likely
as not that such disorder is a result of
the veteran's active military service.
If any combat action (to which a
purported stressor is deemed related) or
specific in-service stressful
experience(s) is/are found to be
corroborated by the record, the examiner
should specifically indicate whether such
action/experience(s) is/are sufficient to
support a diagnosis of PTSD. If so, the
examiner should specifically indicate how
the other diagnostic criteria for the
condition are met, and comment upon the
link between the current symptomatology
and the in-service combat
action/stressful experience(s).
With regard to the dental disability, the
physician should indicate if the
veteran's current dental problems are at
least as likely as not a result of the
veteran's active military service.
With regard to the veteran's current
service-connected disabilities, the
physician(s) should determine the current
nature, extent, and manifestations of
those disabilities.
Each physician should offer an assessment
of the extent to which the
disability(ies) evaluated (either alone
on in concert with other disabilities)
impact(s) upon the veteran's
employability. Each physician must set
forth the complete rationale underlying
any conclusions drawn and opinions
expressed, to include, as appropriate,
citation to specific evidence in the
record, in a typewritten report.
4. To help avoid future remand, the RO
should ensure that all requested
development has been completed (to the
extent possible) in compliance with this
REMAND. If any action is not undertaken,
or is taken in a deficient manner,
appropriate corrective action should be
undertaken. See Stegall v. West, 11 Vet.
App. 268 (1998).
5. The RO must also review the claims
file and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letters 00-87
(November 17, 2000), and 00-92 (December
13, 2000), as well as any pertinent formal
or informal guidance that is subsequently
provided by the Department, including,
among others things, final regulations and
General Counsel precedent opinions. Any
binding and pertinent court decisions that
are subsequently issued also should be
considered..
6. After completion of the foregoing
requested development, and any other
development deemed warranted by the
record, the RO should adjudicate the
claims for service connection for PTSD
and for dental disability. If either of
those claims is not resolved to his
satisfaction, the veteran and his
representative should so be advised. If
the veteran files a timely notice of
disagreement as to either issue, he and
his representative should be provided
with a statement of the case as required
by 38 U.S.C.A. § 7105(d) (West 1991) as
to the appealed issue(s).
7. If not rendered moot, the RO should
adjudicate the veteran's claim for a
total disability rating for compensation
based on individual unemployability in
light of all pertinent evidence of record
and legal authority, to specifically
include that cited to herein. The RO
must provide adequate reasons and bases
for its determinations, citing to all
governing legal authority and precedent,
and addressing all issues and concerns
that were noted in the REMAND.
8. If the total rating claim continues
to be denied, he and his representative
must be furnished a supplemental
statement of the case and given an
opportunity to submit written or other
argument in response. However, the
veteran and his representative are hereby
reminded that to obtain appellate
jurisdiction over the issues referred to
herein that are not currently in
appellate status, a timely appeal must be
perfected. The RO should not return the
claims file to the Board until the time
period for doing so has expired.
The purpose of this REMAND is to afford due process and to
accomplish additional development and adjudication; it is not
the Board's intent to imply whether the benefits requested
should be granted or denied. The veteran need take no action
until otherwise notified, but he may furnish additional
evidence and/or argument while the case is in remand status.
See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v.
Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8
Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129,
141 (1992).
This REMAND must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
JACQUELINE E. MONROE
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).